As part of the audit, we reviewed the report, “COVID-19 Outbreak at the Soldiers’ Home in Holyoke,” authored by Mark W. Pearlstein of McDermott Will & Emery LLP (known as the Pearlstein Report). We also believe that the interviews, interview notes, and other documentary evidence used to write the Pearlstein Report may contain valuable information to help us understand the issues we sought to audit, as well as the perspectives and opinions of those who worked at VHH during the audit period.
On August 9, 2024, we requested “any and all records, including, but not limited to, notes, recordings, and transcripts, in connection with the interviews conducted in connection with Pearlstein Report documents” from the Office of the Governor under Section 12 of Chapter 11 of the Massachusetts General Laws, which provides us the statutory authority to access records in connection with the scope of our audit.6
In an email response, dated August 12, 2024, counsel for the Office of the Governor denied our request for the records, stating, “Governor Baker’s office, in response to several requests, withheld the notes you are seeking as protected by the work product doctrine as well as attorney-client privilege, and that will be our position as well.”
We disagree with this reasoning.
The Pearlstein Report was not legal work. In its engagement letter, dated April 1, 2020, to the Office of the Governor, McDermott Will & Emery stated that it “will be conducting an investigation of the events that led to the death of veterans in the Soldier’s Home, and the management and organizational oversight of the Covid-19 response in the Soldier’s Home.” The resulting report was—in large part—a fact-finding and—in part—a management study that made recommendations regarding non-legal matters. The Pearlstein Report itself confirms this, citing that its scope of work was to answer the following three questions:
- First, what caused and contributed to the COVID-19 outbreak at the Soldiers’ Home?
- Second, did the Soldiers’ Home’s leadership comply with applicable requirements to provide timely and accurate counts of the number of infected patients and staff, and the number of deaths associated with COVID-19?
- Third, what if anything can be done in the future to prevent or reduce the likelihood of a similar outbreak?
This scope of work does not represent legal work but rather a management study of what occurred at VHH and how a recurrence can be prevented in the future. The Pearlstein Report suggests the contributing factors included “staffing, technology, and physical plant improvements,” which are non-legal in nature, further underscoring that the report itself is not legal work that can be withheld as privileged. The underlying records of the Pearlstein Report also cannot be protected on these grounds, as they are not attorney-client work product or protected under attorney-client privilege.
The Pearlstein Report states that the Executive Office of Health and Human Services (EOHHS) withheld 138 documents from the McDermott Will & Emery team, citing attorney-client privilege. This withholding of documentation confirms that Mr. Pearlstein was not serving in the capacity of an attorney for the Office of the Governor, which oversees EOHHS, but rather as a fact-finding investigator against whom EOHHS could assert attorney-client privilege.
We further note that any attorney-client privilege related to the Pearlstein Report was waived when the report was released to the public.
While our office was able to examine other issues related to safety, as detailed more fully in this audit report, we find the withholding of the requested documentation to be troubling. Withholding these records limits VHH’s and the public’s transparency with regard to the safety issues at VHH. This lack of transparency before the pandemic—including the hiring of an unqualified administrator at VHH, which was not broadly known at the time—directly contributed to the tragedy at VHH during the COVID-19 pandemic. The public deserves even more transparency and accountability now, after the tragedy has occurred. Improperly withholding the backup documentation to this report has denied the public the information, accountability, and transparency they deserve as taxpayers and residents.
Refusal to provide records to us through the improper assertion of attorney work product and attorney-client privileges unnecessarily undermines the public’s faith in their government. In this case, the failure to permit appropriate oversight and scrutiny invites criticism and suspicion that the report may not accurately represent what investigators found.
In addition, auditees withholding documents from auditors, who have the legal right to receive them, violates the law and undermines the public’s faith in government. This is even more the case when those documents are clearly public records, as they are in this case.
Recommendations
- Agencies, such as VHH and the Office of the Governor, should only exercise attorney-client privilege when appropriate.
- The work of vendors, including fact-finding investigators and consultants, should be turned over to the contracting agency and made available to the Office of the State Auditor when conducting an audit, and more widely to the public in accordance with the public records law.
Auditee’s Response
In April 2020, the Baker Administration retained McDermott Will & Emery LLP (“McDermott”) to investigate the events that led to the deaths of veterans in the Soldier’s Home caused by COVID-19. Governor Baker’s Chief Legal Counsel executed an engagement letter retaining McDermott as “representation [for] the Office of the Governor” and creating an “attorney-client relationship” between McDermott and the Office of the Governor. EOVS understands that McDermott was retained not only to provide a written report but also to provide legal advice in anticipation of expected litigation. Indeed, a class action lawsuit brought by veterans who contracted COVID-19, and the families of veterans who died during the outbreak, was filed in July 2020 and later settled by the Baker Administration for $56 million.
The Baker Administration determined that McDermott’s interview notes and work papers were subject to the attorney client privilege and the work product doctrine and, on that basis, denied numerous requests for the materials. The [Office of the State Auditor’s (SAO’s)] suggestion to the contrary appears to be based on a misunderstanding of the scope of privilege and work product in the investigatory context. See Att’y Gen. v. Facebook, Inc., 487 Mass. 109, 125, 130 (2021) (explaining that the attorney-client privilege “certainly applies to communications between counsel and client made as part of an internal investigation that is undertaken to gather facts for the purposes of providing legal advice,” and that the work product doctrine similarly applies to documents prepared with the prospect of litigation in mind even if “primarily prepared for a business or other nonlitigation purpose”); In re Kellogg Brown & Root, Inc., 756 F.3d 754, 760 (D.C. Cir. 2014) (“In the context of an organization’s internal investigation, if one of the significant purposes of the internal investigation was to obtain or provide legal advice, the privilege will apply.”); Koch v. Specialized Care Servs., Inc., 437 F. Supp. 2d 362, 369 (D. Md. 2005) (“[T]he simple fact that attorney-client communications eventually result in a ‘public’ communication does not rob the preliminary or prior attorney-client communications of their privileged status.”).
Finally, [the Executive Office of Veterans Services] notes that the Pearlstein Report was issued in June 2020, prior to the start of the SAO’s audit period. The application of the attorney-client privilege and work product doctrine to the materials sought did not limit the SAO from fully exploring the issues discussed in the report.
Auditor’s Reply
We disagree with VHH’s assessment that the interviews, interview notes, and other documentary evidence used to write the Pearlstein Report are subject to attorney-client privilege, as any attorney-client privilege related to the Pearlstein Report was waived when the report was released to the public under Massachusetts public records law. In addition, while we agree that the Pearlstein report was issued prior to the audit period, as mentioned in the Executive Summary above, we believe that it contains valuable information to help us understand the issues we sought to audit, as well as the perspectives and opinions of those who worked at VHH during the audit period and witnessed what occurred.
As highlighted in this Other Matters, the Pearlstein Report itself specified a scope of work that was part fact-finding and part management study. These are not eligible for protection under the attorney-client doctrine. It was, and remains inappropriate, that the notes and other documents that led to the development of this report remain outside of public view.
The public requires transparency relative to (1) repeated failures regarding VHH’s hiring of an unqualified leader, failure to properly supervise him even after many warnings, etc.—and (2) failures in its response to the COVID-19 pandemic at VHH. The public is then asked, by this current administration, to accept that the Pearlstein Report conducted under the prior administration is complete and accurate—while denying our office the ability to provide independent oversight with respect to these important matters. Independent oversight is a hallmark of good government that is transparent and accountable to the people it serves. The failure to provide transparency, accountability, and the requested documentation does nothing to build the public’s faith in its government and, in fact, erodes it.
| Date published: | January 14, 2026 |
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